London Borough of Wandsworth v Dixon

Where one joint tenant validly serves notice to quit, the tenancy is determined and the remaining occupier has no contractual or statutory security of tenure against the landlord’s claim for possession. Article 8 does not permit the court to refuse possession merely because eviction would affect the occupier’s personal circumstances, unless the domestic law is seriously arguably incompatible with the Convention or the public authority’s decision to recover possession was one which no reasonable authority could consider justifiable. A local authority must have regard to Article 8 when deciding whether to pursue possession, but the court must not substitute its own view of proportionality for the authority’s decision. The rule was compatible with Article 8, and the authority’s decision-making process was lawful.

The defendant had occupied a council flat as his home under a joint secure tenancy with his sister. His sister served notice to quit, thereby determining the tenancy. The claimant local authority subsequently obtained an order for possession on the basis that the defendant was an unauthorised occupier.

The defendant applied to set aside the possession order, or to stay or suspend the warrant. He argued that possession would breach his Article 8 right to respect for his home and would therefore be unlawful under section 6(1) of the Human Rights Act 1998. The court considered the effect of the common-law rule on joint tenancies, the guidance in Harrow LBC v Qazi, Kay v Lambeth LBC and Doherty v Birmingham City Council, and the decision of the European Court of Human Rights in McCann v United Kingdom.

1. The application was refused. The possession order made by District Judge Tilbury was not set aside, and execution of the warrant was neither stayed nor suspended.

2. Under Hammersmith & Fulham LBC v Monk, a notice to quit served by one joint tenant validly determines a periodic tenancy unless the tenancy agreement provides otherwise. The rule applies even though its operation may deprive the other joint tenant of statutory protection.

3. Qazi remained binding authority. Kay, as explained and reaffirmed in Doherty, required the court to distinguish between two routes of challenge. First, a seriously arguable challenge may be made to the compatibility of the domestic law with Article 8. Secondly, the public authority’s decision to recover possession may be challenged on conventional public-law grounds if it was one which no reasonable person could consider justifiable.

4. The domestic law governing termination by one joint tenant was not seriously arguably incompatible with Article 8. Parliament had deliberately left the landlord’s right to recover possession unqualified in this situation. The position was materially different from McCann v United Kingdom, where the local authority had procured a notice to quit and thereby bypassed the statutory scheme without considering the occupier’s Convention rights.

5. The local authority was required to take account of the defendant’s Article 8 rights when deciding whether to continue possession proceedings. That obligation did not authorise the court to substitute its own assessment of proportionality. The authority had considered the defendant’s conduct, the statutory housing scheme, the likely possession outcome and the relevant personal circumstances. Its decision was one to which a reasonable authority could come.

The judgment records that the defendant had previously unsuccessfully challenged a housing-allocation decision by judicial review. Permission to appeal to the Court of Appeal was refused after renewal. The present application concerned the separate possession order made by the Wandsworth County Court.